A PAPAL ELECTION UNDER THE PRESENT CIRCUMSTANCES
- Basic Guidelines-
By
Professor Toms Tello Corraliza (Spain)
May, 1994
I.
At this time, the Seclevacantist Catholics are sure that the College of Cardinals has disappeared. By ecclesiastical law the Cardinals had for centuries the exclusive right and duty of electing the Pope, however, under the present circumstances, when there are not Cardinals, one must determine who are the rightful electors and what are the conditions to carry out this election.
Juridical integration is absolutely necessary to fill this gap and to replace the lack of the former electors. The extinction of the vacancy of the Holy See is, by divine right, a pressing and unavoidable need. St. Pius X in his constitution about the papal election says: "Vacante Sede Apostolica Illud Gravissimum Sanctissimumque Est,..Summum Dominici Gregis Pastorem Et Caput... Eligere. Also Pius XII in his constitution: "Vacantis Apostolicae Sedis", describes this obligation as "A VERY SERIOUS DUTY" concerning the Church by divine mandate: "Pergravi Negotio Ecclesiae Divinitus Commisso".
To find the solution to the problem of the so called Great Western Schism, there were requests to the theologians and canonists to express their opinions according to their knowledge and understanding of the situation. Today we have a good knowledge of the history and legal actions of the Church throughout the centuries, and there is not place for arbitrary solutions: the coincidences of point of view from different opinions are numerous and accurate. The essential points are evident and impertinent digressions are not applicable.
"Juridical gaps exist, not only when there is not a given norm for the case, but when other present norms are not applicable..." (Comments to the Canon Law; B.A.C., Vol. I, comments to canon 20, by Father Cabreros Anta). Dr. Homero Johas remarks, about the second case when an existing law cannot be applied in this specific problem, that there are four guidelines which make us use the suppletory right; they are:
a) the lack of electors appointed by human laws;
b) some factual-doubts;
c) the division or schisms among the electors, and
d) the negligence of the electors on applying the law.
("ROMA", No 125, 1992 pages 37-57)
In suppletory right one must follow the law: "NORMA SUMENDA EST". In this particular case canon 20 offers four guidelines to deduce the norm that should be applied:
1. "a legibus ratis in similibus";
2. "a generalibus juris principiis cum aequitate canonica servatis";
3. "a stylo et praxi Curiae Romanae";
4. "a communi constantique sententia doctorum".
Fr. Cabreros Anta, in his comments to canon 20, makes the juridical evaluation of the practice of the suppletory right:"These four guidelines are authentic, because they are the consequences of precepts by the Supreme Legislator. The Norm, that is their conseauence, is a legitimate one because the proceeding established by the legislator has been followed...
It is not necessary to implement the suppletory means in the order presented in canon 20, but an order of preference should be followed.
It is sufficient the use of a suppletory mean; if it is applied right, it will not be opposed to the others. In this work I will present my opinion based on all the suppletory means and I will follow the order of preference. The study will be divided in two sections: they are two different questions with independent answers:
I- WHO ARE, UNDER THE PRESENT CIRCUMSTANCES,THE RIGHTFUL ELECTORS OF THE HOLY FATHER?
II. WHAT PROCEDURE SHOULD BE FOLLOWED?
We will be dealing with the first question following the order of canon 20:
1- According to the first criterion, the substitution should be a consequence of a legal analogy. "The analogical operation completes the legislative work, on doing what one may assume the legislator would have done, but he did not do it. The legal analogy is established according to similar norms, that usually are not difficult to find, provided a careful study is made comparing the subjects, the persons, the goals and special reasons of the laws, and, finally, all the circumstances". (Father Cabreros Anta).
Therefore, it is necessary to look for an applicable norm in this extremely particular case, that could not have been foreseen; there will be a greater assurance of success if the number of interpreters, experts in the law, who are working in finding the norm, is larger. The legal analogy can he found not only in the laws, presently in force, but also in the old laws, promulgated for the same case. Fr. Cabreros Anta says: "Neither explicitly, nor implicitly, one may consider inserted in the Code those ancient laws, that presently are applicable only as integration of the new law in case of a legal deficiency. (Canon 20). Because of a legal deficiency, the Code does not contain, either explicitly or implicitly, any ancient law in particular; it only indicates the authentic criterion to find or create the applicable norm, that can coincide materially with the ancient law". Title IV, Ch. I, Article II of Book II of the Canon Law is related to this subject, because it deals with elections and provision of offices; papal election is related to this matter as genders are related to species.
Canon 109 is particularly important because it establishes a principle of divine law: "those who are admitted in the Ecclesiastical Hierarchy are not admitted by consensus or the call of the people or by the secular authority". Father Arturo Lobo makes this comment about this canon, in his work in the B.A.C. :
"The people and the civil authority are not competent to confer a power, that, at least, because of its objective, is always supernatural... It is true that at certain times in the History of the Church, people and civil authority intervened in the election of persons who became members of the hierarchy, but that was only tolerated as a source of information. On the other hand, the good will and the absolute obedience rendered at that time by the faithfuls to the Ecclesiastical Authority considered as prudent (underlined by the author of this article) the tolerance of that meddling, and furthermore, contributed to the subsequent public appreciation for the persons elected for the spiritual government of the community".
Canon 166 is very clear: "Si laici contra canonicam lihertatem electioni ecclesiasticae quoquo modo sese immiscuerint, electio ipso jure invalida est". That is: "the meddling of the lay people in an ecclesiastical election, against the canonical freedom, 'ipso jure' makes the election invalid".
Father Lobo comments:
"The majority could authorize the physical presence of alien people at the act of voting with the conditions that they do not vote (C. 165) and that they do no wrest freedom to voters (c. 166). The meddling of lay people or civil authorities that EFFECTIVELY hampers the freedom of most voters (for example: by force, deceit, fraud, bribery or veto) would nullify the election according to the law; however, the simple request, advice or influence on behalf of a candidate, without a real result in the election, do not cause the same nullifying effect".
Obstructing the freedom of the electors or meddling illegitimately in an ecclesiastical election constitute a crime, penalized in canon 2390. Up to this point, we have referred to what concerns the ecclesiastical elections "in genere". Let's go now by the History of the Church, and let's consider the special circumstances at certain times, throughout the twenty centuries of its existence, in the papal election, as well as the periodical laws promulgated by the Sovereign Pontiffs. This study has been completely done in the "Dictionnaire de la Theologie Catholique de Vacant": (Articles: "Eleciton des Papes", col. 2281-2318, and "Conclave").
I summarize the historical presentation of the "D.T.C." The method for the papal election has not been established by the Divine Law. (This is the most common opinion, and it prevails against the opinion of Dom Grea, who thinks that the natural electors, by divine law, are the members of the clergy of the Roman Diocese). The laws about the papal elections are ecclesiastical laws. Christ gave to his Church, and, specially, to the Supreme Shepherd, the responsiblity to establish the regulations of this essential point of the ecclesiastical discipline and to introduce the modifications required by the vicissitudes of times.
In the beginning, the papal election, like the election of other bishops, took place without any positive law, in a spontaneous way, that became a custom, by the clergy and people. Specifically, bishops were elected by the people, the clergy and the provincial bishops, under the presidency of the Metropolitan Bishop. That was the way used in the diocese of Rome. However, THE PEOPLE DID NOT HAVE AN ABSOLUTE RIGHT TO VOTE. It is true that people could express their wishes and preferences, but the favorite one was not risen to the episcopacy until he got the acceptance of the provincial and the Metropolitan bishops. Even in the earliest times this proverb became common: "DOCENDUS EST POPULUS, NON SEQUENDUS".
The Council of Nicaea set very clearly this aspect of the absolute right in the elections of bishops: "Si quis praeter sententiam Metropolitani fuerit factus episcopus, hunc magna Synodus definit episcopum esse non oportere". (Canon 6). It prescribes that without the consent of the Metropolitan, the episcopal election would be null. Nevertheless, it was advisable the consultation of the people... The Church considered a legitimate reason for this situation to make easier the affection of the people for the exercise of obedience. The election of the bishop of Rome was not an exception to this custom. The Roman People proposed some names. The clergy and its dignataries examined the first list, and, according to their judgement, they added or suppressed names. Finally, THE BISHOPS OF THE ROMAN PROVINCE OR SUBURBS, gathered together, and in the last instancy they took a decision about the candidates presented by the Roman Clergy and People. Little by little, among the clergy, the exclusive influence of the titularies of the Roman Churches and Basilicas (that is: the "CARDINATI") became more powerful. When the number of the faithfuls was growing, it was realized the great inconvenience of their participation, under no circumstances, in those elections.
The Legislation About The Papal Election
I - A
Beginnings: Saint Symmachus promulgated the first decree about the papal election in three articles, in the year 499. In the third article it is prescribed that the elected one should obtain the simple majority of votes of ALL THE CLERGY. This is the first attempt to set regulations and the first step toward the restricted suffrage. The Church, throughout its history, specially during the Middle Age, had to compromise and tolerate the imperial "PLACET" and other illegitimate meddling, to avoid greater evils; however, the Church authorities often protested against the usurpation of their rights.
I - B
Nicholas II: A turning point in the customs of the first millenium was the law of the papal election promulgated by Nicholas II on April 13, 1059 in the Bull "IN NOMINE DOMINI". The main point is that from the eleventh century on the election of the Sovereign Pontiff became the duty of the Cardinal-Bishops. As for the other members of the Clergy, they were requested to adhere to the election, according to the old tradition, but that was a secondary formality. The main role was performed by the "CARDINAL-BISHOPS". In another section of the Bull it is authorized that in the case when the election could not take place in Rome, the "CARDINAL-BISHOPS" should assemble elsewhere, wherever they believe it may be more convenient, even if the number of pious clergy and faithfuls who follow them would be very reduced.
II.
Saint Gregory VII (Hildebrand): As the pope from 1073-1085 he worked tirelessly in order that the papal election would not be the outcome of the universal suffrage, but of the restricted vote of an electoral body, only an ecclesiastical one, and from which the lay people would be definitely excluded. He reaffirmed the important Bull of Nicholas II.
III.
Constitution of Alexander III: According to the provisions of Nicholas II, only the "CARDINAL-Bishops" would take part in the the pontifical election in an active manner; but little by little the Cardinal-Presbyters and the Cardinal-Deacons believed that they also had the right to cast their votes. This usurped and tolerated use would produce the schism of Pier Leoni (Anacletus II) who was elected in 1130 by the Cardinal-Presbyters and the Cardinal-Deacons. However, the Bull of Nicholas II was clear: THE CARDINAL-PRESBYTERS AND THE CARDINAL-DEACONS HAD A CONSULTIVE ROLE NOT A DELIBERATIVE ROLE.
Thirty years later, another similar case occurred. Therefore, it was urgent to put an end to this risk of schism, adjusting the legislation to the surreptitiously introduced custom, rather than breaking definitely with it. That was the objective of the Constitution of Alexander III (pope from 1159-1181) in the Third Lateran Council: "LICET DE VITANDA" (1179), about a century after the Bull of Nicholas II.
From then on the Cardinals of the three orders would form the electoral body and the two thirds majority would be required instead of a simple majority. Furthermore, on allowing Cardinals OF DIFFERENT NATIONAL ORIGINS, from several Catholic countries, a representative College of the Universal Church was established, whose character would be as international and universal as the Papacy.
Up to here, the brief summary of the "Dictionnaire de la Theologie Catholique, de Vacant". While the electoral college became international the customary right of the Roman Clergy to the election was maintained (at least as a simple souvenir); it was hateful any change of that customary right, so the problem was solved by the juridical fiction of granting the title of a Roman Parish to the Cardinal-Presbyters from other diocesis.
Conclusions or consequences from the first criterion of canon 20 to get a suppletory norm "a legibus latis in similibus":
1- Catholic lay people absolutely lack the right to vote in any ecclesiastical election, except by special privilege that should be granted clearly and must be authentic "a fortiori" in a papal election. This possibility could only be admitted in the hypothetical case that all the clergy would stubbornly refuse the fulfillment of that extremely serious duty. This does not mean that one cannot make resource to lay people (specially in the present circumstances), asking them from advice, opinions and accurate information about the qualities of possible candidates. Even, one can follow the example of the Church who tolerated and compromised (to avoid greater evils), so one could consider convenient the suffrage of certain qualified lay people, who could be exceptional witnesses to the purity of the election process. What a lay person cannot ask is the vote as a right. It would be an illegitimately meddling against the canonical freedom of the election, and would make void "IPSO JURE" that election according to canon 166.
2- It seems that the right electors, who directly and in the first place must end the vacancy, in these circumstances, are the BISHOPS. As a matter of fact, on making a historical study of the papal elections, we can isolate a constant fact that gives us the key to know for sure which members of the Church (or from what category) are the rightful electors for ecclesiastical positions. We remark at once that those who are never absent are the members of the episcopacy. THAT NEVER CHANGES. On the other hand, the bishops acted alone for more than a century, according to the ecclesiastical law, and excluding the other categories.
Therefore, when the appointed electors by ecclesiastical law have disappeared, the logical consequence is that the real electors, by divine right, are the BISHOPS. (This is what I think, "salvo meliore").
3- It does not make sense to state, without specification, that the Roman Clergy is indispensable to carry, out such election and much less to proclaim, as Dom Grea does, in "L'Eglise et sa Divine Constitution" (page 176), that the Roman Clergy has the exclusive right to the papal election, and, even to insist that this is by divine right.
4- Let us see what suppletory norm we can get from the second criterion in the law, that is, from the General Principles of Right: "a generalibus juris principiis cum aequitate canonica servatis".
The DIVINE RIGHT is, without any doubt, the highest of the general principles of the Canon Law, either natural or positive, explicitly proclaimed in the same law. (Canon 6, 6th).
The BISHOPS, as successors of the Apostles, were told, by Divine Right (not to the lower clergy): "...quaecumque alligaveritis super terram, erunt ligata et in caelo; et quaecumque solveritis super terram, erunt soluta et in caelo" (Mat. 18, 18). Peter Abelardo's error, condemned by the Church (D.379) was to affirm that only the Apostles received this power, and not his successors.
As far as the episcopal power is concerned, one should have in mind that the Bishops are the main and primary members of the Mystical Body of Christ (D.S. 3804). They rule the Church, in their assigned areas, not as the Vicars of the Pope, but "Ut Vicarii et Legati Christi regunt" (Benedict XIV, Brev. Romana Ecclesia, October 5, 1752, and in M.C., already quoted, and also in "Satis Cognitum" in D.S. 3307-3310).
Thence, I infer ("salvo meliore) that the rightful electors, by divine right, are the faithful bishops, either many or few, whom we may trust at the present time. It is up to them the full right and the very serious duty of ending the already too long vacancy, in the present circumstances. This does not mean that they could not ask and invite priests and even deacons, because of the reduced number of existing known orthodox bishops.
5- The third criterion for suppletory norm according to the law, is the style and practice of the Roman Curia: "a stylo et praxi Curiae Romanae". We cannot get anything from this criterion, because the Roman Curia has not given any direction about it. A situation like the present one was an unthinkable case.
However, we have an example, that is much more important and full of teachings than any direction given by the Curia, as such, because it was an event that involved the infallibility of the Church. This is the solution adopted to solve the problem created by the Great Western Schism. This one must be our juridical Guide-Case, as I said in my speech in the Congress of Brussels (9-28-91).
The decision of the Fathers of the Council of Constance (1417) to elect a legitimate and doubtless Pope, after the deposig the dubious ones, was to establish an Electoral Body, formed by the dubious Cardinals and a kind of Compromisaries, 30 prelates, six for each one of the five nations, in which they arbitratrily classified the Bishops of the European Christendom.
Let us consider the trascendent event in that crossroad of perplexity in the history of the Church. An Ecumenical Council (although necessarily imperfect, under the circumstances) had to be infallible on interpreting the Divine Right, in order to avoid acting against it. In fact, the Supreme Authority approved it, so we cannot doubt that those Fathers of the Council acted according to the demands of the Divine Right.
Therefore, the alternative they chose "ad cautelam", was not a selection of the Roman Clergy who, according to the thesis of Dom Grea are the rightful electors by Divine Right, neither a selection of the Canons of St. John Lateran, who could be the choice of others, nor of a group of the simple faithfuls, what at this time other authors want; but what they did was a selection of bishops, that is, of members with jurisdiction, of the main and primary members of the Church.
Thence, the consequence is that the rightful electors, by Divine Right, (those who must decide about the papal election in these circumstances) are the BISHOPS, to whom it was also said: "What you bind on earth, it will be bound in heaven..."(Mat. 18, 18)
6- Let us study finally the fourth and last criterion prescribed by the law in order to obtain a legal suppletory norm, that is: "of the common and constant sentence sof the doctors": "a communi constantique sententia doctorum".
In Fr. Cabreros Anta's book that has been mentioned, he says: "Although the Canonical Doctrine, by itself does not have a juridical value, it has been raised, by the will of the legislator, to a suppletory source. This suppletory norm is not really different from the former ones, but the application of them. The authority of the doctors or experts in the law is also the argument or suppletory mean. The sentences of doctors are known as extremely common, when they are accepted by all; in this case, the doctrine is morally true. Canon 20 accepts as a suppletory source the canonical doctrine, even if it is not extremely common, provided it is common and constant, because when this is the case, the applicable norm is sufficiently rational and sure.
The old canonists gave the name of Common Sentence to one defended "EX PROFESSO" or in a detailed study, by six or seven serious doctors, who are recognized by their great science or expertise. The doctrine must be constantly maintained by its defenders, so that for them there is not doubt or change of opinion. The reason why the ecclesiastical legislator accepts the common and constant sentence of the doctors as a suppletory source is not their jurisdictional authority, that they do not have, but their scientific authority, that makes possible to assume their doctrine as true or really probable. This common and constant doctrine makes sure the interpretation of the law, if another doctrine, with similar authority, does not contradict it. When it deals with supplying, it can be prudent and acceptable, according to Canon 20, even if there is an opposite sentence of equal authority; but it cannot be accepted if the presumption or serious probability of the truth on which is founded the authority of the doctors is destroyed with powerful arguments.
Fortunately we rely on a series of doctors, who have reached an agreement about this matter, that it was for them completely hypothetical. Let us see. The doctrine of these authors has been mentioned, exposed and interpreted by several contemporary authors, with the intention of advising the papal election or deterring it. None of them is exhaustive in the quote and exposition of all the authors who have dealt with this matter. I completed the collection after reading all of them. The contemporary authors who cite those doctors are the following writers:
Abbé V. M. Zins, in "SUB TUUM PRAESIDIUM", No 4, July 1986, pages 34-38.
Daly J. Britons, "C. L. Letter" No 7, Nov. 1990, pages 114-119.
Johas, Homero, in "ROMA", No 125, pages 38-39 and 44.
Mock, K. J. "In defense of a Future Papal Election"; Lecture by the author in the Congress gathered in Spokane, Washington, U.S.A., at the end of June, 1993.
The doctors cited by them are, chronologically: CAYETANO, VITORIA, SAINT ROBERT BELLARMINO, JOHN OF ST. THOMAS, DOM GREA, L. BILLOT and CH. JOURNET. A total of seven.
1) CAYETANO (CAJETAN) (1469-1534) deals with this matter in "De Comparatione Auctoritatis Papae et Concilii" and in "Apologia De Comparata Auctoritate Papae et Concilii": "Papatus, secluso Papa, non est in Ecclesia nisi in potentia ministerialiter electiva, quia scilicet potest, sede vacante Papam eligere per Cardinales, vel PER SE IPSAM". The method "PER SE IPSAM" refers to the extraordina procedure of a papal election, and it requires some explanation in the mind of Cajetan: "In case the norms cannot be applied, the task of supplying them would fall on the Church by restitution". (Apologia, Chapter XIII).
The power of electing the Pope, resides in the Pope himself, in an eminent, regular and principal manner. Eminently, because he has the full power that contains all the infer powers. Regularly, by an ordinary right; there is here a difference with the Church, that could not determine by herself a new method of election EXCEPT IN A CASE OBLIGED BY NECESSITY.
Principally, because in the Church this power resides only in a secondary way. However, in an exceptional case, for example, if the would have not foreseen anything in the matter, or if it would he uncertain who the true Cardinals or the true Pope are, as it happened AT THE TIME OF THE WESTERN SCHISM, then the power of election WOULD RETURN TO THE UNIVERSAL CHURCH. (Apologia, Chapter XIII). Also: "In the absence of the Clergy of Rome, it would correspond to the Universal Church (it refers to the papal election), because the Pope should be the Bishop (of the Universal Church). The expression "it falls on the Church by restitution", should not be taken in its strict canonical meaning, according to what Cajetan himself explains, but in the opposite sense of the transmission from a superior to the immediate inferior.
2) FRANCISCO DE VITORIA (1483-1546). Vitoria is cited only by Dr. Johas, the other authors ignore him. That is too bad because Vitoria in his exposition is very straight, more complete, more clear and more convincing in his reasonings. Therefore, I will take the quotes from Vitoria directly from his texts. Vitoria exposes his thesis in his work "Relecciones Teológicas" (Volume II of the Critical Edition of his works, by Magister Fr. Luis G. Alonso Getino, Madrid, 1934). He deals with this issue in the "Relección Segunda": "De Potestate Ecclesiae" (pages 151-168). After proving that Peter must have perpetual successors (point 18), presents his fifth proposition: "Mortuo Petro; Ecclesia habet potestatem subrogandi, et instituendi alium in loco illius, etiam si Petrus nihil de hoc prius constituisset". "Constituta a Christo patestate (spirituali) non videtur quod Ecclesia sit peioris conditionis a eligendum sibi Principem, quam civilis Respublica, quae quocumque casu, deficiente Principe, potest sibi alium constituere. Item, ut dictum est, haec potestas oportebat ut perseveraret in Ecclesia, sed defuncto Petro, et nihil de succesore providente, nec statuente, ut contingere poterat, non restabat aliud medium, ni per electionem Ecclesiae. Ergo " That is: "this (spiritual) power has been created by Christ, so it would not be fair to place the Church in worse condition than the civil society, and if this one, on losing its prince, can appoint another one, the Church also could elect one... if nothing has been set before hand, what could happen, the only possible solution is the election by the Church. Therefore... He proves this instance supposing one possibility: the total disappearance of the Electoral Body: "Quia nunc etiam, si aut bellum, aut pestilentia, aut alia calamitas, aut casus absumeret Cardinales, non est DUBITANDUM quin Ecclesia posset providere sibi de Summo Pontifice: alias vacaret perpetuo illa Sedes, quae tamen perpetuo debet durare. Item illa potestas est communis, et SPECTAT AD TOTAM ECCLESIAM; ergo a tota ECCLESIA debet provideri, et NON AB ALIQUA PARTICULARI ECCLESIA, vel certo ordine, aut genere hominum: immo negligentibus Cardinalibus, aut perniciose dissidentibus, ECCLESIA POSSET SIBI PROVIDERE"; that is : "If, because of the mentioned causes, the Electoral College of Cardinals would disappear (they are the exclusive electors by human law); we cannot doubt that the Church could provide for herself the Supreme Pontiff; if the Church does not do it, the Holy See would stay vacant forever, and that is not possible because she must last forever. Furthermore, that power is common and belongs to the whole Church; therefore the whole Church should provide in this matter, and not a particular Church or certain class of persons. Even, if the Cardinals would be to be blamed for their division or negligence) THE CHURCH COULD ELECT A POPE."
Now, let us see what Vitoria understands, in point 19, by TOTA ECCLESIA in this case: Vitoria wonders: "SED AB OMNIBUS CHRISTIANIS?"; and he answers: "ELECTIO SUMMI PONTIFICIS IN TALl CASU SPECTARET AD SOLUM CLERUM, ET NULLO MODO AD POPULUM". And he gives the reason: "Quia administratio rerum spiritualium nullo modo spectat ad laicos...; sed institutio Summi Pontifices maxime expectat ad gubernationem et administrationem rerum spiritualium, ergo nullo modo spectat ad laicos Item, electio presbyterorum aut Episcoporum non spectat ad plebem... Ergo multo minus electio Summi Pontificis... Item: Quia talis electio esset prorsus impossibilis, cum esset impossibile ut totus populus conveniret ad eligendum, nec postquam convenissent, posset contingere, ut major pars unum et eundem optaret".
As we see, he excludes from such election, in the supposed extraordinary circumstances, THE LAY PEOPLE, secondary members of the Church, giving several reasons for that exclusion. And then, advancing straight forward, with logical soundness, he establishes the seventh proposition in point 20. After rejecting the Universal Suffrage in the Church, he restrains even more the right of the election in the clergy. PROPOSITION :"Immo non videtur etiam talis electio spectare ad totum clerum". And he gives the reason: "Quia licet ad omnes clericos spectet administratio spiritualium, tamen non omnia spectant ad omnes, sed citra Episcopos omnes habent certa et limitata ministeria, extra quae non extendit se eorum officium, ut Diaconi ministrant, Presbyteris; Presbyteri autem ministrant Sacramenta: et eadem ratione vix convenire posset Clerus totius orbis ad talem electionem".
So, he excludes the Clergy inferior to the Episcopacy. Who are, then, the rightful electors, by divine right? Vitoria explains this in point 21, eighth Proposition: "In quocumque casu vacaret Sedes Apostolica, MANENDO IN SOLE JURE DIVINO, electio spectaret ad OMNES EPISCOPOS CHRISTIANITATIS". And he proves this point: "Quia ipsi sunt Pastores Gregis, et Curatoras et Tutores, et tota administratio ecclesiastica citra Summurn Pontificern spectat ad eos, et omnia possunt per se ' quae inferiores omnes possunt. Dico ergo, quod quomodocumque, sive instituto, sive casu omnes Episcopi Christiani convenirent, in tali casu Episcopi possent eligene UNUM SUMMUM PONTIFICEM tantae authoritatis, sicut fuit Beatus Petrus, ETIAM RECLAMANTIBUS OMNIBUS, VEL MAJORI, PARTE LAICOPUM, AUT ETIAM CLERICORUM".
However, he recognizes that it is very convenient that an ecclesiastic law should exist to establish an undoubtful Electoral Body to avoid occasions of schism. If the Electoral Body were too large, embracing all the bishops in the world, he sees that as a moral impossibility, specially in his time (XVI century), to call and gather them together; so it is up to Peter and his successors to decide, because the popes have full power. He objects the election by the Roman Clergy in the first centuries. "Nam (ut ex historia habetur) aliquando vel Clerus Romanus, vel populus, Summum Sacerdotem eligebant." To this point he responds saying that :"si Clerus aut Populus Romani aliquando hoc jus habuit, ut eligeret Summum Pontificem, hoc fuit certe, vel lege de hoc lata, vel consuetudine recepta, et non JURE DIVINO. Nam etiam eligento Roma Clero, Si EPISCOPI CHRISTIANI ratam habebant electionem, hoc satis est potuit, ut illa farma electionem per aliquam aetatem servaretur". That is: "If in the first centuries the Pope was elected by the Roman Clergy and People, we can be sure, that either there was a law about it, or it was an accepted custom; but it was not by DIVINE RIGHT. If the Roman People elected and the Catholic Bishops ratified the election that could be sufficient reason to practice this method of election for some time".
Eleventh Proposition: "Ratio eligendi Summum Pontificem, quae nunc servatur in Ecclesia, non est de JURE DIVINO". Haec nota est ex praecedentihus, quia exclusa humana lege, spectat ad Episcopos. Item: non invenitur in toto JURE DIVINO. Item: Petri successores potuerunt eam mutare, ut dictum est. Item: non semper hoc modo fuit facta. Et ultimo quia ordo Cardinalium, qui nunc sunt electores, non est de JURE DIVINO."
In other words, this is not by DIVINE RIGHT,
1) because if the human law is left aside, the election belongs to the bishops;
2) nothing is found in the whole divine right about this method of election;
3) because the successors of Peter could change it, and in fact they did it; and
4) because the Cardinals, who presently are the electors, are not electors by DIVINE RIGHT.
The clear exposition of Vitoria ratifies, in a very convincing way, that the rightful ELECTORS, by DIVINE RIGHT, "seclusa legi papali" about this matter, are the CATHOLIC BISHOPS.
3) Saint Robert Bellarmino (1542-1621) deals with this matter in "Controversiae: De Clericis, L.I." (chapter 10, Proposition 8). H. Johas cites him "ad sensum" along with Billot. The quote of the text, made by J. Daly is as follows: "The General Council would be competent, but practically would have to be accommodated to the present process by the Roman Clergy and by the bihops closer to Rome, or subject to the Bishop of Rome". Bellarmino accepts the General Council, according to the precedent of Constance, but at the same time he hesitates and is inconsistent, assing the existence of the Roman Cardinals, who, precisely in the hypothesis and in the present situation have disappeared.
4) Juan de Santo Tomas (John of St. Thomas) (1589-1644) The work of this author related to the matter in hand is: "Cursus Theologicus in Summam Theologiae D. Thomae" (II-II, q.7, a. 7, disp. 2a I No. 9) It is brought by Ab. Zins, quoted by Journet: "If the power to elect the Pope belongs, by the nature of the things, and, therefore, by DIVINE RIGHT, to the Church as a whole with her head, the practical method on the election (according to John of St. Thomas) is not stated in the Holy Scripture; it is the simple Ecclesiastical Law that determines which persons in the Church could validly perform the election". "John of St. Thomas remarks that the Church has the full power not over the validly elected pope, but over the election itself, taking the necessary steps to carry it on..." "That is what was done at the time of the Council of Constance, what is emphasized by John of St. Thomas himself".
5) Dom Grea, quoted by Zins and by J. Daly. This doctor is definitely opposed to all the others: "The election of the Sovereign Pontiff belongs so excluively to the Roman Church, that no power, no assembly, no Council, even an ecumenical one, could replace it". (L'Eglise et sa Divine Constitution, page 176). This opinion is refuted by Zins (1.c.p.35), so I am not going to spend time to contradict this serious error of Dom Grea.
6) Cardinal Louis Billot. All authors, except Zins, cite him, and even Daly and Mock do it extensively. I will summarize the doctrine of Cardinal Billot about this matter. After setting, as something that cannot be contradicted, that in normal circumstances the papal law must be followed, and that this law cannot be neither modified, nor changed by any other authority in the Church; then, he considers the hypothesis of an extraordinary circumstance, when the papal election according to the law would be impossible.
Billot reaches the conclusion, that in an extraorciinary case, when it would be necessary to elect the pope, in the impossiblity of following the rules of the papal election (as it was the case at the time of the Great Schism, when Martin V was elected), one should accept without difficulties that the electoral power would pass to a General Council, because the Natural Law itself demands that in those cases the power of a superior should pass to the immediate inferior power by a way of restitution, because it is indispensably necessary for the surviving of the society and to avoid the afflictions of the extreme necessity. In case of doubt about the existence of true cardinals, as it happened at the time of the Great Schism, we can assure for certain that the power to elect the pope remains in the Church of God: "In that case it seems that the power descends to the Universal Church, when the electors appointed by the Pope are not existing". (He quotes Cajetan).
7) Msgr. Charles Journet. This theologian is cited by Zins and Mock. The latter points out that the work of Journet enjoys great authority because it received the Apostolic Blessing of Pope Pius XII. This doctor, supported on the doctrine of the great theologians Cajetan and John of St. Thomas, affirms that, in an extraordinary case, the power to elect the pope is transferred to the Church by restitution.
Journet, practically,reaffirms the doctrine of the two great masters that he completely endorses. What he adds is when and why this question came about: "The question of the power to elect the pope became pressing in the XV and in the XVI centuries, because of the controversies about the authority of the Pope and the authority of the Council".
From this fourth criterion, the doctrinal one, we can reach the following conclusions. The Doctors mentioned here, except Dom Grea, agree on this point: that in an extraordinary circumstance like the disappearance of the Electoral College, appointed by ecclesiastical law, the power and the right of a papal election, would pass, by RESTITUTION, to the Universal Church, to a General and Ecumenical Council.
So, even if we do not consider the crystal clear explanations by Vitoria; who are the rightful members of a general or Ecumenical Council? - THE BISHOPS.
What is the meaning of "to the Universal Church by Restitution"? The word "ECCLESIA", without any addition, may have two meanings:
a) the total Church ("discens" and "docens": faithfuls and hierarchy, lay people and clergy);
b) in a restricted sense it is the hierarchical Church or the Authority. Thus, we say: "The Church teaches, the Church prescribes... " and the previous "consensus" of the "discens" Church is not necessary to keep all the strength and vigor of her commandments. (D.S. 3O74).
To explain in a clearer way, Cajetan himself, who is the author of the expression (and the other Doctors accept it) tries to explain it, as the passing or transference from a superior power or competency of the Authority to the immediately inferior. Without a doubt the hierarchical grade, that is immediately inferior to the Papacy is the Episcopacy. Therefore, to the SEDEVACANTIST EPISCOPAL BODY exclusively corresponds the duty and the right of the papal election in the present circumstamces. It is (relatively) Sovereign to decide on this extremely serious matter.
This is the conclusion about a Suppletory Norm from the Doctrine of the mentioned Doctors, who dealt with this question, and who were stars or first or second magnitude in Catholic Theology.
On the other hand, Dom Grea (who disagrees with them) does not even appear in the Bibliography of outstanding authors, presented by Salaverri at the beginning of his "TRACTATUS DE ECCLESIA CHRISTI".
The result of the four criterion, according to the law (legal, juridical, "praxis" or practical, and doctrinal) is an amazing and harmonical convergence of the same suppletory norm: THE RIGHTFUL ELECTOR BY DIVINE RIGHT, TO ORGANIZE A PAPAL ELECTION, IN THE PRESENT CIRCUMSTANCES, ARE THE FAITHFUL BISHOPS.
About the second question, that is: What is the procedure that must be followed? My opinion is very limited, because the Episcopal College in addition to be the RIGHTFUL ELECTOR, it is SOVEREIGN to plan the specific procedure of the election.
I believe that if the essential is observed, for example, the manner the election, by the ordinary mean of scrutiny or unanimous acclamation with the obtention of 2/3 of the votes plus one; and perhaps something else, the Episcopal College enjoys a wide range of faculties for the secondary matters.
Pius VI, in very difficult circumstances, took his precautions for the foreseen possible case, to avoid the danger of schism or hesitatic on fulfilling this extremely serious duty (that is the essential) of providing to the Church her Visible Head. In a Pontifical Brief on February 11, 1799: "ATTENTIS PECULIARIBUS PRAESENTIBUS ECCLESIAE CIRCUNTANTIIS", Pius VI dispensed some law requirements. When he was a prisonner of Napoleon, he even gave very wide powers to the Cardinals to decide about the very LAW OF THE CONCLAVE, as well as about the other ceremonies, customs and formalities, that are not essential for the electoral action. His successor, Pius VII, did the same. Pius IX as a consequence of the invasion of the Pontifical States, also established a particular legislation, as an alternative for the case when the Ordinary Norms could not be observed.
Leo XIII in his Constitution "PRAEDECESSORIS NOSTRI", renewed the Bull "CONSULTORI" of Pius IX. ("Dictionnaire de la Theologie Catholique, Art. Conclave).
In this matter we cannot be more papist than the Popes. From the study of the mentioned Documents, we can reach the consequence that when the Popes foresaw some disturbing circumstances, they gave very wide powers or faculties, to carry out the modifications (after keeping the essential) that the Electoral College shall determine.
Professor Tomás Tello Corraliza
Merida, Spain
LAUS DEO ET MARIAE
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